NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.807 of 2002

Judgment Reserved on : 14.5.2018

Judgment Delivered on : 13.8.2018

Vinod Kumar, S/o Hira Singh alias Tirath, aged 20 years, R/o Village
Sahmalgi, P.S. Kunda, District Kawardha, Chhattisgarh
—- Appellant
versus

State of Chhattisgarh through District Magistrate, Bilaspur
— Respondent
——————————————————————————————————
For Appellant : Shri V.C. Ottalwar, Advocate
For Respondent : Shri Ramakant Pandey, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 30.7.2002

passed by the Additional Sessions Judge, Mungeli in Sessions

Trial No.114 of 2001 convicting and sentencing the Appellant as

under:

Conviction Sentence

Under Section 376 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.1,000/-

with default stipulation
Under Section 506 Part II of Rigorous Imprisonment for 1
the Indian Penal Code year and fine of Rs.500/- with
default stipulation

The sentences are directed
to run concurrently

2. Facts of the case, in brief, are that the prosecutrix (PW4), a

married woman, aged about 20 years, was visiting the house of the

Appellant for filling water. On 6.2.2001 also, i.e., the date of
2

incident, at about 10:00 a.m., she had gone to the house of the

Appellant for filling water in his house. It is alleged that at that

time, the Appelalnt was alone at his house. Taking advantage of

loneliness, he caught the prosecutrix, dragged her towards the

kotha (grainery) of his house and committed forcible sexual

intercourse with her there. It is also alleged that after committing

the forcible sexual intercourse, he also threatened her of life.

Thereafter, she returned her home and told about the incident to

her husband and other family members. Due to fear, the incident

was not reported by her immediately. On 10.2.2001, she lodged

First Information Report (Ex.P3). She was medically examined by

Dr. Arpana Bakharu (PW3). Her report is Ex.P2 in which she found

no external injury on the body of the prosecutrix nor around her

private part. She also found that the prosecutrix was habitual to

sexual intercourse. She could not give definite opinion regarding

recent sexual intercourse with the prosecutrix. The Appellant was

medically examined by Dr. P.L. Kurre (PW7). His report is Ex.P5 in

which he found that the Appellant was capable to perform sexual

intercourse. During investigation, clothes and vaginal slide of the

prosecutrix were seized vide Ex.P11 and underwear of the

Appellant was seized vide Ex.P13. The seized clothes and vaginal

slide were sent to the Forensic Science Laboratory vide Ex.P18 for

chemical examination. FSL report is Ex.P19 in which it is stated

that sperms were found on the petticoat of the prosecutrix and the

underwear of the Appellant. Statements of witnesses were

recorded under Section 161 of the Code of Criminal Procedure.

On completion of the investigation, a charge-sheet was filed

against the Appellant for offence punishable under Sections 376

and 506 Part II of the Indian Penal Code. Charges were framed
3

against him under Sections 376 and 506 Part II of the Indian Penal

Code.

3. In support of its case, the prosecution examined as many as 10

witnesses. Statement of the Appellant/accused was also recorded

under Section 313 of the Code of Criminal Procedure in which he

denied the guilt and pleaded false implication due to a previous

enmity. No witness has been examined in his defence.

4. After Trial, the Trial Court convicted and sentenced the Appellant

as mentioned in the first paragraph of this judgment. Hence, this

appeal.

5. Learned Counsel appearing for the Appellant submitted that the

Appellant is innocent. There is no legal evidence against the

Appellant. He further submitted that there was a previous enmity

between the family members of the prosecutrix and the Appellant

and, therefore, the Appellant has been falsely implicated in the

case. He further submitted that the alleged incident took place on

6.2.2001, but the report was lodged on 10.2.2001, i.e., after 4 days

of the alleged incident. The delay in lodging the report has not

been properly explained. Therefore, the whole prosecution story is

doubtful. He further submitted that even if the entire evidence

adduced by the prosecution is taken as it is, the prosecutrix

appears to be a consenting party. Hence, no offence is made out

against the Appellant.

6. Per contra, Learned Counsel appearing for the State supported the

impugned judgment of conviction and sentence and submitted that

the prosecutrix has categorically stated that she was forcibly raped

by the Appellant. Her statement is duly corroborated by other
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witnesses including the Village Kotwar Sunder Das (PW10). There

is nothing on record to show that there was any previous enmity

between the Appellant and the family members of the prosecutrix.

Therefore, there is no substance in the argument that the Appellant

has been falsely implicated due to a previous enmity.

7. I have heard Learned Counsel appearing for the parties and

perused the record minutely.

8. The prosecutrix (PW4) has stated in her Court statement that on

the date of incident she had gone to the house of the Appellant for

filling water in his house. At that time, the Appellant was alone at

his house. When she reached there, the Appellant caught her, took

her towards the kotha (grainery) of his house, caused her to fall

down there, removed her clothes and committed sexual

intercourse with her. At that time, the Appellant threatened her that

if she shouts he will kill her. Therefore, she kept mum. She has

further stated that thereafter she returned home, she did not

disclose about the incident to anyone on the way and she told

about the incident to her husband at home. She has further stated

that after 2-3 days of the incident, she had gone to the police

station to lodge a report along with her husband. Since the

Appellant and his family members had surrounded their house and

threatened them that if a report is made by her they will kill her, she

lodged the report after 2-3 days of the incident. In paragraph 11 of

her cross-examination, she has admitted that when the Appellant

had committed sexual intercourse with her, she had not sustained

any injury.

9. Nand Kumar (PW5) husband of the prosecutrix, Bhagwatiyabai
5

(PW6) jethani (sister-in-law) of the prosecutrix, Jhagluram (PW1)

father-in-law of the prosecutrix and Nonabai (PW2), mother-in-law

of the prosecutrix have supported the above statement of the

prosecutrix and stated that the prosecutrix had gone to the house

of the Appellant for filling water in his house. On return from there,

she had told them that the Appellant had caught her hand, took her

towards the kotha (grainery) of his house and committed rape with

her there. All of them have further stated that when they tried to

make a report, the Appellant and his family members threatened

them that if a report is lodged against the Appellant, they will kill

them and, therefore, the prosecutrix lodged the report belatedly.

10. Village Kotwar Sunder Das (PW10) has stated that Jhagluram

(PW1), father-in-law of the prosecutrix had come to his house and

told him that the Appellant had committed rape with the

prosecutrix. Since he (Sunder Das) was ill, he could not go along

with Jhagluram to make a report. In his cross-examination, he has

stated that after 7-8 days of the incident, Jhagluram had told him

about the incident.

11. Dr. Arpana Bakharu (PW3) has stated that she examined the

prosecutrix on 12.2.2001 and gave her report (Ex.P2) in which she

found no external injury on the body of the prosecutrix nor around

her private part. She also found that the prosecutrix was habitual

to sexual intercourse. She could not give definite opinion

regarding recent sexual intercourse with the prosecutrix.

12. Dr. P.L. Kurre (PW7) has stated that he examined the Appellant on

16.2.2001 and gave his report (Ex.P5) in which he found that the

Appellant was capable to perform sexual intercourse.
6

13. Head Constable Ramlakhan (PW8) has stated that he recorded

First Information Report (Ex.P3) as narrated by the prosecutrix on

10.2.2001.

14. Assistant Sub-Inspector A.R. Sahu (PW9) has stated that he

investigated the offence in question. He also recorded statements

of witnesses under Section 161 of the Code of Criminal Procedure.

He seized underwear of the Appellant vide Ex.P13. His statement

reveals that he also carried out other formalities during the

investigation.

15. A minute examination of the above evidence makes it clear that

there was no dispute regarding the fact that the prosecutrix (PW4)

used to go to the house of the Appellant for filling water in his

house. The prosecutrix has categorically stated that on the date of

incident, at the time when she reached the house of the Appellant,

he was alone at his house. He caught her hand, took her inside

the kotha (grainery) of his house and committed sexual intercourse

with her there. When she tried to shout, he threatened her of life,

therefore, she could not shout. She has remained firm during her

cross-examination. Immediately, on returning her home, she

narrated the whole incident to her husband Nand Kumar (PW5),

her jethani (sister-in-law) Bhagwatiyabai (PW6), her father-in-law

Jhagluram (PW1) and her mother-in-law Nonabai (PW2). These 4

witnesses have supported her statement. From the statement of

Village Kotwar Sunder Das (PW10), it is also clear that he was also

told about the incident by Jhagluram (PW1). Though the FIR

(Ex.P3) was lodged after 4 days of the incident, belated lodging of

the FIR has been properly explained by the prosecutrix. There is

nothing on record to show that there was any previous enmity
7

between the Appellant and the family members of the prosecutrix.

Therefore, the argument that the Appellant has been falsely

implicated in the case due to a previous enmity is not acceptable.

The evidence on record does not suggest that the prosecutrix

lodged the FIR (Ex.P3) because she was seen with the Appellant

in compromised position. Therefore, the argument that the

prosecutrix was a consenting party is also not acceptable.

Therefore, from the evidence available on record, it appears that

the Trial Court has rightly convicted the Appellant under Sections

376 and 506 Part II of the Indian Penal Code. Hence, the

conviction imposed upon the Appellant is affirmed. The sentence

awarded to the Appellant is the minimum prescribed sentence. No

reason has been assigned on behalf of the Appellant to award

sentence less than the minimum prescribed sentence awarded to

the Appellant. Therefore, the sentence part is also affirmed.

16. Consequently, the appeal is dismissed. The impugned judgment of

conviction and sentence is affirmed.

17. It is reported that the Appellant is on bail. His bail bonds are

cancelled. He is directed to surrender before the Trial Court

immediately or he shall be taken into custody for undergoing the

remaining part of his sentence, if any.

18. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel)
JUDGE
Gopal